State v. Bottoms, 19576

• Decision Date: 28 February 1973
• Docket Number: No. 19576,19576
• Citation: 195 S.E.2d 116,260 S.C. 187
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Marvin E. BOTTOMS, Appellant.

Page 116

195 S.E.2d 116

260 S.C. 187

The STATE, Respondent, v. Marvin E. BOTTOMS, Appellant.

No. 19576.

Supreme Court of South Carolina.

Feb. 28, 1973.

Felix L. Finley, Jr., and John T. Gentry, Pickens, for appellant.

Sol. Thomas W. Greene, Greenville, and Asst. Atty. Gen., Dudley Saleeby, Jr., Columbia, for respondent.

BUSSEY, Justice:

Appellant Bottoms was charged with having murdered one Billy Ellenburg on or about the 20th day of August, 1969, at 108 Belmont Circle in Easley, Pickens County. At his first trial in June 1970, a mistrial resulted, the jury being unable to agree upon a verdict. Upon his second trial, commencing on November 29, 1971, he was convicted of manslaughter and sentenced to a term of ten years.

At the time of the homicide, appellant was married to but separated from Mary Sue Bottoms, who was living with the two Bottoms children at 108 Belmont Circle, which residence was jointly owned by her and appellant. The deceased Ellenburg was married but was living with Mrs. Bottoms rather than his wife. Appellant Bottoms was living with a girl friend in Greenwood, South Carolina. There is evidence to the effect that he had no objection to the deceased living with his wife, but also evidence which supports a contrary inference.

Other than Mrs. Bottoms, the decedent and possibly the appellant, no one else was present at the time and place of the homicide, which occurred in the early morning hours. Shortly thereafter Mrs. Bottoms gave the investigating officers a lengthy written statement to the effect that Bottoms had shot and killed the said Ellenburg, including all details, circumstances, and events leading up to the homicide. Her testimony at the coroner's inquest a few days later was to the same effect. At the first trial, however, she repudiated botht he statement and her testimony before the coroner and testified that it was she, rather than Bottoms, who shot and killed Ellenburg. Her testimony upon the second trial was to the same effect. In the course of her direct examination, she testified unequivocally that her written statement and her testimony at the coroner's inquest were both untrue.

What we regard as the primary questions on this appeal arise out of the use made by the prosecution, both in evidence and argument, of the prior inconsistent statements of Mrs. Bottoms which she had freely and unequivocally admitted making and repudiated as being false. The record shows that the cross-examination of Mrs. Bottoms occupies nearly twenty-five pages of the printed transcript, and a considerable portion thereof was devoted to the publication of the contents of the written statement and testimony at the coroner's inquest, previously repudiated by Mrs. Bottoms as false. Early in the course of her cross-examination, counsel for appellant requested the court to instruct the jury that these prior statements could not be received as substantive evidence and could only be received for the purpose of contradiction. Still later, counsel further objected to the publication of the contents of the prior statements as being 'contrary to law'. In both instances the court declined to rule in favor of the appellant.

The jury argument of the solicitor was recorded and is contained in the record. An analysis thereof shows that he relied, rather heavily we think, upon the prior repudiated statements of Mrs. Bottoms as being the truth of the matter, in effect treating such as substantive evidence. Counsel for appellant did not interrupt in the course of the argument, but, upon its conclusion, made a motion for a mistrial on the ground that such argument was highly improper, which motion was overruled. In the course of his charge, his Honor did instruct the jury that it must not consider as evidence arguments of counsel and that no statement of any witness made out of court, which was inconsistent with the sworn testimony of the witness, could be taken as a substantive fact or evidence thereof, but was only allowed for the purpose of impeaching the witness. While not admitting that there was error, it is argued by the State that any error with respect to the prior statements of Mrs. Bottoms was cured by his Honor's charge. We think not.

The record shows that the actual trial, not counting impaneling the jury, consumed two very full days. The prior statements of Mrs. Bottoms were published at great length in the course of cross-examination, over objection and without appropriate contemporary instructions and argued at length to the jury. We think there was prejudicial error and that such, under the circumstances, could not be cured by a relatively brief portion of the charge couched in general terms.

In 133 A.L.R., commencing at page 1454, there is an annotation dealing with extrajudicial statements by a witness. At page 1455 we find the following:

'The general rule is almost universally recognized that evidence of extrajudicial statements made by a witness who is not a party and whose declarations are not binding as admissions is admissible only to impeach or discredit the witness, and is not competent as substantive evidence of the facts to which such statements relate.'

Cited in support of the text are the South Carolina cases of Bank of Parksville v. Dorn, 126 S.C. 368, 120 S.E. 72; Sumter v. American Surety Co., 174 S.C. 532, 178 S.E. 145; Squires v. Henderson, 208 S.C. 58, 36 S.E.2d 738.

We quote the following appropriate language from McMillan v. Ridges, 229 S.C. 76, 91 S.E.2d 883, 884:

'Here the admissions of the witness that he made the material portions of the conflicting statement rendered it unnecessary that it be offered in evidence, Even incompetent and subject to that objection had it been offered. 'The purpose in calling a witness' attention to his prior inconsistent statements before offering them in evidence to impeach him is to give him an opportunity to admit or deny them, or to explain them. If he admits that he made the statements in question, there is no necessity for proving them and they are not admissible in evidence.' 58 Am.Jur. 429, 430, Witnesses, Sec. 780.' (Emphasis added).

To the same effect is 98 C.J.S. Witnesses § 610, p. 611, where it is said, inter alia, that if the witness admits unequivocally that the inconsistent statement was made, he has thereby impeached himself and further evidence thereof is unnecessary and inadmissible. Even where the making of the inconsistent statement is denied and it is appropriate to introduce such for the purpose of impeachment, it is the duty of the court, upon request, to instruct the jury that it can consider such evidence for the purpose of impeachment only, not as substantive evidence of the facts. 98 C.J.S. Witnesses § 628, p. 643.

'To discredit a witness by showing that he made a contradictory material statement out of court is one thing, and it justifies argument that he is unworthy of belief. But it is quite another thing, and not justified, to predicate an argument for conviction on the unsworn contradictory statement out of court, in defendant's absence, as if it were a substantive fact proved.' Quoted in Hill v. State, (1918), 118 Miss. 170, 79 So. 98, from Middleton v. State, 80 Miss. 393, 31 So. 809, 810.

For the foregoing reasons we reverse the judgment of conviction and remand for a new trial.

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